Kerala High Court
Swami Sukruthananda vs Sree Narayana Dharma Sangham Trust
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY, THE 6TH DAY OF JANUARY 2017/16TH POUSHA, 1938
FAO.No. 246 of 2016 ()
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AGAINST THE ORDER DATED 05.11.2016 IN IA NO.1269/2016 IN OS NO.127/1954 OF THE
SUB COURT,ATTINGAL
APPELLANTS/PETITIONERS:
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1. SWAMI SUKRUTHANANDA
MEMBER, SREE NARAYANA DHARMA SANGHAM TRUST,
SIVAGIRI MUTT, VARKALA.
2. SWAMI KRISHNANANDA
MEMBER, SREE NARAYANA DHARMA SANGHAM TRUST,
SIVAGIRI MUTT, VARKALA.
BYADVS.SRI.M.BALAGOVINDAN
SRI.T.K.ANANDA PADMANABHAN
SRI.S.SHIBU KUMAR
RESPONDENTS/COUNTER PETITIONERS:
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1. SREE NARAYANA DHARMA SANGHAM TRUST
SIVAGIRI MUTT, REPRESENTED BY ITS SECRETARY
SWAMI RITHAMBARANANDA, SIVAGIRI MUTT, VARKALA-695 021.
2. SWAMY RITHAMBARANANDA
SECRETARY, SREE NARAYANA DHARMA SANGHAM TRUST,
SIVAGIRI MUTT, VARKALA-695021.
3. SWAMY PRAKASANANDA
PRESIDENT, SREE NARAYANA DHARMA SANGHAM TRUST,
SIVAGIRI MUTT, VARKALA-695021.
ADDL.R4 AND ADDL.R5:
ADDL.R4. SWAMI SANDRANANDA, THE GENERAL SECRETARY,
(ASSUMED CHARGE ON 07-11-2016),
SREE NARAYANA DHARMA SANGHOM TRUST,
SIVAGIRI MUTT, VARKALA, CHIRAYINKEEZHU TALUK,
THIRUVANANTHAPURAM DISTRICT.
ADDL.R5. SWAMI VISUDHANANDA, THE PRESIDENT,
(ASSUMED CHARGE ON 07-11-2016),
SREE NARAYANA DHARMA SANGHOM TRUST,
SIVAGIRI MUTT, VARKALA, CHIRAYINKEEZHU TALUK,
THIRUVANANTHAPURAM DISTRICT.
ADDL.R4 AND ADDL.R5 ARE IMPLEADED VIDE ORDER DTD.22.11.2016 IN IA NO.1169/2016.
FAO NO.246/2016 2
ADDL.R6 TO ADDL.R9:
ADDL.R6. SWAMI SUBHANGANANDA SANYASIN,
FORMER MEMBER OF BOARD OF TRUST,
SREE NARAYANA DHARMA SANGAM TRUST,
SIVAGIRI MUTT, VARKALA.
ADDL.R7. SWAMI SOOKSHMANANDA, MEMBER,
SREE NARAYANA DHARMA SANGAM TRUST,
SIVAGIRI MUTT, VARKALA
ADDL.R8. SWAMI MANGALASWAROOPANANDA,
FORMER MEMBER OF BOARD OF TRUST,
SREE NARAYANA DHARMA SANGAM TRUST,
SIVAGIRI MUTT, VARKALA.
SADDL.R9. SWAMI ANAPEKSHANANDA,
FORMER MEMBER OF BOARD OF TRUST,
SREE NARAYANA DHARMA SANGAM TRUST,
SIVAGIRI MUTT, VARKALA.
ADDL.RESPONDENTS 6 TO 9 ARE IMPLEADED VIDE ORDER DATED 6/1/2017 IN IA .
1204/2016, IA 1210/2016, IA 1212/2016 AND IA 1219/2016, RESPECTIVELY.
R2 & 3 BY ADVS. SRI.P.R.VENKETESH
SRI.G.KEERTHIVAS
ADDL R4 & R5 BY ADVS. SRI.R.D.SHENOY (SENIOR ADVOCATE)
SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
ADDL.R6 BYADV.SRI.J.HARIKUMAR
ADDL. R7 BYADVS. SRI.R.RAJASEKHARAN PILLAI
SMT.SABINA JAYAN
SRI.SHERINE JOSEPH
ADDLR8 BY ADV. SRI.SUBHASH CYRIAC
ADDL.R9 BYADVS. SRI.VAKKOM N.VIJAYAN
SRI.NIKHEL K GOPINATH
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
8.12.2016, THE COURT ON 06.01.2017 DELIVERED THE FOLLOWING:
A.HARIPRASAD, J.
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F.A.O. No.246 of 2016
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Dated this the 6th day of January, 2017
JUDGMENT
This appeal is directed against the order passed on I.A.No.1269 of 2016 in O.S.No.127 of 1954 on the file of the Court of Sub Judge, Attingal.
2. Appellants are members of a public charitable trust known as "Sree Narayana Dharma Sanghom Trust", hereinafter mentioned as the "Trust". The Trust is being governed by a Scheme approved by this Court by judgment dated 26.03.1959 in A.S.No.14 of 1956 and C.M.A.No.3 of 1955. The original suit was one for framing a Scheme. A Scheme had been drawn up while the matter was pending in appeal before this Court. As the parties had agreed to accept the Scheme prepared pending the litigation, this Court dismissed the appeal and the C.M.A. accepting the Scheme. Ext.R4(c) is the Scheme. As per Clause 83 of the Scheme, two members of the Trust can challenge any act of the trustees before the Sub Court, Attingal if it was in violation of the Scheme. As per the Scheme, Trust Board consists of minimum seven members and maximum eleven members elected from among the members of the Trust on a special meeting. Term of the Board is five years from the date of assumption of office. Till such time, the previous Board can function by virtue of Clause FAO No.246 of 2016 2 79 of the Scheme.
3. On 12.10.2016, the general body of the Trust, through a secret ballot, elected 11 members of the Board. The former President Swami Prakasananda lost the election. He issued a notice on 12.10.2016 under Clause 44 of the Scheme, which is challenged in another proceedings before the lower court. On 13.10.2016, the out going President issued a notice to the newly elected members asking them to participate in a meeting to be held on 20.10.2016. Since the notice itself was issued without complying with the provisions of the Scheme, the appellants filed an interlocutory application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 before the Sub Court, Attingal, invoking Clause 83 of the Scheme. In that matter, the impugned order was passed. According to the appellants, the court below ought to have found that the notice issued by the 3rd respondent contravened Clauses 27 and 28 of the Scheme. They contend that outgoing President has no authority to convene a single special meeting of the Board to elect the President, General Secretary and Treasurer in one go.
4. The contesting respondents resisted the interlocutory application before the court below. According to them, the notice issued by the 3rd respondent was perfectly legal and the application is bereft of any bonafides.
5. Certain persons came forward to get themselves impleaded. FAO No.246 of 2016 3 The applications will stand allowed and they are impleaded as eo nominee parties to this proceedings.
6. Heard Sri.M.Balagovindan, learned counsel appearing for the appellants; Sri.P.R.Venkitesh, learned counsel appearing for respondents 2 and 3; Sri.R.D.Shenoy, learned Senior Counsel appearing for additional respondents 4 and 5; Sri.J.Harikumar, learned counsel appearing for additional 6th respondent; Sri.Sherine Joseph, learned counsel appearing for additional 7th respondent; Sri.Subhash Syriac, learned counsel appearing for additional 8th respondent and Sri.Vakkom N.Vijayan, learned counsel appearing for additional 9th respondent.
7. Learned counsel for the appellants contended that the court below failed to note that President of the Trust has no authority ordinarily to convene a meeting. He can invoke Clause 38 of the Scheme only under extraordinary circumstances. Admittedly, the election was conducted on 12.10.2016. Out going President by invoking Clause 44 of the Scheme convened a meeting on 22.10.2016. According to the appellants, the said provision has no relevance for convening a meeting. In the instant case, the special meeting convened is not in conformity with the provisions in Clauses 27 and 28.
8. For better understanding, the following provisions in the Scheme will have to be examined. Clauses 17 to 22 deal with composition of the Trust Board. Clause 18 reads as follows:
FAO No.246 of 2016 4
"The Board shall consist of not less than seven and not more than eleven members of the Sanghom, all of whom shall be elected by at a special meeting of the General Body."
9. Clauses 23 to 36 deal with the powers and responsibilities of the Board. Clauses 27 and 28 are extracted hereunder for clarity.
"27. The Board shall elect the President of the Sanghom from among the members of the Board at a special meeting of the Board. The President shall hold office during the term of the Board.
28. The Board shall also elect at a Special Meeting convened for the purpose, a General Secretary, a Treasurer and such other office bearers as may be found necessary from time to time from among the members of the Board and the office bearers so elected shall hold office during this term of the Board."
10. Clause 38 deals with the powers and responsibility of the President. It reads as follows:
"The President will preside over the meetings of the Trust Board and all other bodies when he is present and exercise a general superintendence and control of the affairs and administration of the Sanghom and convene extraordinary or special meetings of the Board or any other bodies constituted under this scheme, if in his opinion an emergency has arisen warranting such action." FAO No.246 of 2016 5
Clause 40 deals with the duties of General Secretary. Clause 40(ii) is relevant for our purpose which reads as follows:
"(ii) to convene meetings of the Board and all other bodies in proper time;"
11. Procedure to be followed in the meetings of the Board has been dealt with in Clauses 44 to 48. It is profitable to take note of Clauses 44 and 48:
"44. Meetings of the Board shall be convened at least once in two months. The quorum for a meeting shall be fifty percent of the total strength of the Board. The first meeting of the Board under this scheme shall be convened by the President and one week's notice of the same shall be given to the members through registered post.
48. Two clear week's notice of the Special Meeting of the Board shall be issued to the members. The quorum for the Special Meeting shall be two-thirds of the total membership of the Board. Any decision taken therein is valid only if it is supported by an absolute majority in the entire Board. No business other than those specified on the agenda shall be transacted at a Special Meeting of the Board."
12. Clause 50 deals with the constitution of the Executive Council. It says that the Executive Council shall consist of three members, viz., (i) President, (ii) General Secretary and (iii) Treasurer. Clause 51 reads as FAO No.246 of 2016 6 follows:
"The Executive Council shall meet at least once in two weeks. The first meeting of the Executive Council shall be convened by the President and the time and place of the subsequent meeting shall be fixed at every meeting of the Council."
13. Clauses 52 to 55 deal with the powers of the General Body. Clause 55 is extracted hereunder.
"There shall be issued twenty clear days' notice of a Special Meeting of the General Body and the quorum for such a meeting shall be two-thirds of the total membership of the Sanghom. Any decisions taken therein is valid only if it is supported by in absolute majority of all members of the Sanghom. No business other than those specified on the agenda shall be transacted at a Special Meeting of the General Body."
14. Clause 77 is highlighted by the contesting parties, which reads as follows:
"Under this scheme the first Trust Board shall consist of nine members of whom Sree Anand Thirtha Swamigal shall be the President, Sree Narayana Thirtha Swamigal shall be the General Secretary and Sree Nijananda Swamigal shall be the Treasurer and the list of the other members of the FAO No.246 of 2016 7 Board has been handed over by the President Sree Anandthirtha Swamigal to the members concerned duly signed and they shall hold and discharge their respective offices and functions as if they had been duly elected under the provisions of the scheme."
15. Clause 79 is a provision provides to avoid a vacuum in the administration. It reads thus -
"Any Trust Board with its President and office bearers will continue to function, till a new Trust Board elected by the Special General Body meeting comes to function."
Clause 83 enables two members of the Sanghom to move the execution court (Sub Court, Attingal) for appropriate remedies under the Scheme.
16. Sri.Balagovindan contended that on a conjoint reading of Clauses 44 and 77, it can be seen that the President could call for a meeting only on the first time of implementation of the Scheme. Thereafter Clause 44 has no application.
17. As mentioned above, Clause 44 specifically says that the Board shall convene a meeting at least once in two months. It further says that the quorum for the meeting shall be fifty percent of the total strength of the Board. Then it says that the first meeting of the Board under the scheme shall be convened by the President and one week's notice of the same shall be given to the members through registered post. According to FAO No.246 of 2016 8 the learned counsel for the appellants, this limb of the Clause is applicable only for the first meeting conducted after implementation of the Scheme. This submission is strongly opposed by the contesting respondents. According to them, no such limitation can be read into the powers of the President who preside over subsequent meetings.
18. Clause 77 enlists the names of the members of Executive Council constituted for the first time. Learned Senior Counsel Sri.R.D.Shenoy contended that "first meeting of the Board" shall not be equated to "meeting of the first Board". According to him, Clause 44 is still operative and not redundant. It applies not only to the first Board constituted under the Scheme, but also to all the subsequent Boards. Therefore, there is nothing illegal in Exts.R4(a) and (b) notices. It is also contended that even on previous occasions, such practices were adopted.
19. On a harmonious reading of Clauses 44 and 77, I do not find any substance in the contention of the appellants that the power given to the President to convene first meeting of the Board should be confined to the first Board which came into being immediately after approval of the Scheme
20. Relying on Clause 40(ii) of the Scheme, learned counsel for the appellants contended that it is the duty of the General Secretary to convene meetings of the Board and all other bodies in proper time. At any rate, this cannot be construed as the one for the first meeting of the Board FAO No.246 of 2016 9 for obvious reasons.
21. Clause 48 deals with special meeting. It says that two clear weeks' notice of the special meeting of the Board shall be issued to the members. It further says that the quorum for a special meeting shall be two-thirds of the total membership of the Board. Another important provision in the Clause is that no business other than those specified in the agenda shall be transacted at a special meeting of the Board. It is therefore contended by the appellants that the arrangement of Sivagiri pilgrimage during 2016-2017 cannot be clubbed with the matters specified in Clause 44 of the Scheme.
22. Clause 27 deals with the election of President from among the members of the Board at a special meeting. Clause 28 deals with the election of General Secretary, Treasurer and such other office bearers of the Board at a special meeting. According to the learned counsel for the appellants, these elections cannot be held together because the President elected as per Clause 27 has to preside over the special meeting convened under Clause 28. Necessarily the special meeting contemplated under Clauses 27 and 28 should be held separately. Even if one insists that it can be on the same day, both cannot be held together as the special meeting under Clause 27 should precede that under Clause 28 and there must be a reasonable time gap. It is therefore contended that Ext.R4(c) notice is illegal.
FAO No.246 of 2016 10
23. On a reading of Clauses 27, 28 and 79, it is clear that there is no difficulty in convening special meetings for the purposes mentioned in the above clauses. Clause 79 authorises the President and office bearers to continue to function till a new Trust Board is elected by the Special General Body meeting. Clause 27 says that after issuing a due notice, the Board shall elect President of the Sanghom at a special meeting. Clause 28 says that the Board shall also elect at a special meeting convened for the purpose, a General Secretary, Treasurer and other office bearers. The expression "also" cannot be interpreted to indicate the requirement of another notice for a special meeting. Going by the order of chronology, the election to the office of President must precede the election of other office bearers.
24. Learned counsel for the appellants relying on Shackleton on the Law and Practice of Meetings contended that essentials of a valid notice are the following:
"(1) State the date, time and place of meeting.
(2) State with sufficient fullness the purpose of the meeting.
(3) Give notice of any special business to be conducted at the meeting.
(4) Comply with any statutory and legal obligations.
(5) Be clear, honest, unambiguous and FAO No.246 of 2016 11 definite.
(6) Be issued on good authority.
(7) Be given in the prescribed manner (hand, post, advertisement or other means).
(8) Allow the appropriate length of time between service and the date of meeting.
(9) Be sent to every person entitled to receive it.
(10) Comply in all respects with the regulation, rules or byelaws of the body issuing it."
It is further contended that most of the essentials have been violated in this case. Learned counsel who supports the appellants also challenged the validity of notices issued. Per contra, learned Senior Counsel appearing for the contesting respondents contended that the notices under challenge were issued with certainty and specificity. Notices were issued in time as stipulated in the Scheme. On a careful reading of the wording in Clauses 27 and 28, I am of the view that the outgoing President has the power to issue notice as stipulated in the Scheme to convene a special meeting of the Board to elect the President and other members of the Executive Council. Only thing is that there must be clarity in the notice regarding the convening of the special meeting. And the election to the office of President must happen first and then only, other members of the Board, like General Secretary, Treasurer, etc. could be elected. To this extent, the view taken by the court below is correct and is to be confirmed. FAO No.246 of 2016 12
25. The court below rightly held that the outgoing President has no authority to decide matters to be considered and implemented by the newly formed Trust Board. Rightly therefore the court below injuncted the second agenda in the notice pertaining to Sivagiri pilgrimage. On an evaluation of the entire matters, I find no reason to interfere with the order impugned. It is made clear that none of the observations in this judgment shall affect the matters, if any, pending before the trial court regarding administration of the Trust.
With these observations, the appeal is dismissed. All pending interlocutory applications will stand dismissed.
A. HARIPRASAD, JUDGE.
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